Saturday, June 26, 2004

The United States’ extradition treaty with Mexico permits our southern neighbor not to surrender suspected murderers wanted in the U.S. unless U.S. prosecutors waive the death penalty.

Doing time in a Mexican jail is cruel and unusual punishment -- and that’s the good news. Decades ago, the Kingston Trio lamented, “So here we aaaare in the Tijuana Jail,” and conditions have since gone south, so to speak. Even a correspondent for National Public Radio’s All Things Considered, in whose comparisons the United States always gets the invidious end of the stick, wrote, “In many ways, Mexican jails are much worse [than American]… massively overcrowded and falling apart… [where c]orruption is rampant…” According to other reports, in some Mexican jails hard time is done sleeping on hard floors, sharing the concrete with convicts from aptly-named gangs such as the Ear Loppers and the Finger Cutters. NPR did note that the inmates enjoy remarkable freedom within the jails, which function almost like villages. (Apparently it takes a village to raise a convict.) But these are villages massively overcrowded with Ear Loppers and Finger Cutters. Furthermore, NPR continued, in Mexico, certain crimes carry shorter punishments, such as five to eight years for a homicide conviction.

Given the brevity of the sentences, it may be just as well that Mexican jails are hellholes: many who commit crimes in the United States will serve time in Mexico, if anywhere. A recent townhall.com column by Terence Jeffrey, “Make Mexico Extradite Killers,” helps explain why this is so. In it Mr. Jeffrey wrote of an American family whose father, a Los Angeles county deputy sheriff, was murdered by an illegal alien already wanted for two attempted murders. The shooter fled to Mexico, as have more than a dozen others who wounded or killed American police officers. And they are still there.

Why? The United States’ extradition treaty with Mexico, Mr. Jeffrey went on, permits our southern neighbor “… not to surrender suspected murderers wanted in the U.S. unless U.S. prosecutors waive the death penalty…” It gets worse: “… following a Mexican Supreme Court decision that declared life imprisonment unconstitutional, Mexico stopped returning suspects unless U.S. prosecutors waived life sentences, too.” It seems as if Mexico wants the United States to foot the bill for incarcerating its criminal class -- according to Mexican rules.

Mexico is not the only country that has so tidied up its own criminal justice system that it can spare the time to offer the United States its expertise. So far these other nations have presumed only to limit the punishment we mete out to people who commit crimes in the US. France famously did this in the case of Ira Einhorn, the Philadelphia hippie guru who murdered his girlfriend and stashed her body in a trunk in his closet. Canada retains the option not to extradite suspects facing the death penalty and often exercises it. In a recent extradition case before the Canadian Supreme Court, United States v. Burns, involving suspects wanted by Washington state for a triple murder, Amnesty International, the International Centre for Criminal Law & Human Rights, the Criminal Lawyers Association, the Washington Association of Criminal Defense Lawyers, and the Senate of the Republic of Italy all intervened on the side of -- well, you can guess which side they supported. (A hint: it was not that of the three murder victims.)

But it is the practices of Mexico that impact on us most, especially on southern California: Mr. Jeffrey cited one estimate that in recent years more than 350 violent criminals have fled from there to Mexico. His solution: “…action from the president [Bush] aimed at making Mexico unconditionally extradite killers.” It is impossible not to sympathize with the families of victims of killers now sheltered in a foreign country. It is also impossible to imagine what action Mr. Jeffrey expects. The ground rules for extradition are embodied in a treaty, buttressed by a Mexican Supreme Court decision. The New York Times reported, “The court, in a 6-to-2 ruling, said a life sentence negated the Mexican Constitution's provisions for rehabilitation. ‘It would be absurd to hope to rehabilitate the criminal if there were no chance of his returning to society,’ Justice Roman Palacio wrote for the majority.” Absurd, indeed. Not the decision; to us Madisonian Americans, it is the Mexican Constitution that is absurd. Now, this decision may cause some readers to admire the progressiveness of the Mexican Supreme Court, but before you reflexively rush to nominate it to succeed Jimmy Carter as a winner of the Nobel Peace Prize, please note that in 1997, as reported by the Interpress Service, that same Court ruled that “… forcing a spouse to have sex is not rape but a mere ‘undue exercise of a right.’”

Perhaps because the concept of rehabilitation is so foreign to Mexican prisons, Justice Palacio still believes it might work if ever it is tried. Of course, the Mexican Supreme Court is not always so fastidious about extradition: as reported approvingly by the Human Rights Watch, in 2003 the Court used the principle of “universal jurisdiction” to permit the extradition from Mexico to Spain of someone wanted for atrocities committed in Argentina. (Perhaps China will return the favor of all that military technology we let them have and extradite our felons from Mexico to face Chinese justice.)

Only slightly more realistically: what about diplomacy and negotiation, those panaceas urged by people who never so much as haggle over the price of a used car? Even presuming for the moment that the Mexican Supreme Court were to allow its government any wiggle room, just what must the United States give up so that Mexico will “unconditionally extradite killers?" Given Mexico’s differing culture and widespread dislike of yanquis, it would expect the United States to relinquish mucho in the areas of, say, immigration, trade, and criminal justice. Once relinquished, there is no guarantee that in practice the new system of extradition would work any better than the present, replete as it is with delays and corruption. Indeed, a new extradition treaty, no matter how much we give up in return for it, would likely increase the resentment many Mexicans feel toward the United States and make its administration all the more difficult. And on our side of the border, Mr. Jeffrey reminded us, “This raises a U.S. constitutional issue: If killers who flee to Mexico are guaranteed reduced sentences, killers who don't flee can claim unequal justice.” Indeed, administration of the treaty would be subject to the vagaries of judges on both sides of the border -- including California’s 9th Circuit and those justices of our own Supreme Court all too willing to look abroad for a rationale of their decisions. In short, a new treaty would be no guarantee of justice.

What is the United States to do? Nothing. Well, after a pro forma request to extradite, almost nothing. If Mexico or some other nation wishes to attach strings, hawsers, really, to its extradition of criminals back to the United States, then we should let that country keep that criminal. Call it Meximum Security. It is fitting that the culture that helped create a criminal be the one to deal with him; the host country can imprison the criminal, to sleep on hard floors next to the Ear Loppers, or turn him loose on its populace, as it thinks better. No matter which, the criminal is no longer victimizing Americans, and this, not some abstract notion of justice, is the ultimate goal.

"Almost nothing?" We should extend statutes of limitations for whatever time a criminal is in a country that refuses unconditional extradition. And, to ensure the citizens of these countries realize the sort of thugs their governments are welcoming to their neighborhoods, we should set up Internet web sites, in the respective languages, detailing the offenses, complete with mug shots and gory crime scene photos. Third, to cut expenses for, especially, the overloaded California penal system, we should take fingerprints and DNA samples from convicts who are nationals of Mexico or some other uncooperative nation and then deport them to their homelands, which after all claim to be so much better than the United States at this whole criminal justice business. This last may sound radical, but it is at worst an “undue exercise of a right.” (Besides, the Senate of the Republic of Italy, so self-assured that it presumed to advise the supreme court of Canada, that paragon of niceness, would doubtless be eager to accept all of our convicts.) We are told that the United States is not supposed to be the world’s cop; it follows that it should not be the world’s jail. Think, too, of all the money we would save -- justice never comes cheap in this country.

We could start this in a small, truly federal way, without any capital-F Federal action. For example, the Los Angeles County district attorney could use a tenth of a percent of the money saved by not futilely pursuing the deputy’s killer to put a Spanish-language website trumpeting his presence in Mexico. And the Los Angeles county jail is tantalizingly close to the Mexican border, under three hours’ drive by prisoner-transport bus.

Despite the money saved nationally, it might be argued that this notion is politically unrealistic, often repeated by those whose own pet notions assume, say, that humans are purely economic or purely angelic (or both). If political reality will inevitably quash this notion, why worry about it? To generalize: if thing called political reality is so overwhelming, why, then, should not we all just shut up, hunker down, and await the next election? Of course, we shall not, intuiting that the way to begin to make a notion palatable is to present and defend it. Palatable, not realistic. Politic reality is unrealistic, a random interplay of fragments of vague, transitory, and contradictory prejudices bearing little relation to the holder's real moral and material interests. (This does not include partisan politics; that is purely economic.) Think not? Take a moment to compare the political reality in this country on September 10, 2001 with that of two days later. With that of 2004? Which of the three was real, if any? Worse, we live in a prosperous era that leaves too many of us, like the Senate of the Republic of Italy, with too much time on our hands, more than enough to mistake our fragmentary thought-bites for philosophy or compassion. We therefore need to constantly delineate the realistic from the palatable, and both from the thought-bites; this requires that we often be “politically unrealistic.”

More realistically, it can be argued that our porous borders would allow free transit of these criminals back into the United States. This is not an argument against doing “almost nothing;” it is yet another argument for using some of the money saved to secure our borders against these criminals.